Law and Society Commons^™

Navigating Borders: Law Practice And Alternative Business Structures In The United States And Abroad, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Pro Bono, Supplied And Demanded, Anita Bernstein

St. Mary's Journal on Legal Malpractice & Ethics

. Of the fifty-six blackletter provisions in the Model Rules of Professional Conduct, the rule about pro bono is the only one that tells lawyers they “should”—rather than must, must not, or may—take a particular action. This verb, which in effect says: “You deserve praise if you do it but hey, no pressure,” embodies the partial perspective that dominates pro bono—partial in the sense of both incomplete and biased. Valorizing pro bono while imposing no consequences on people who fail to perform it indulges and flatters what this Article calls pro bono’s supply side. Bar leaders, rule writers led by …

Teaching Cross-Cultural Communication In Law School: Lessons From Medicine, Social Work, And Business, Mireille Butler, Jaclyn Celebrezze

St. Mary's Journal on Legal Malpractice & Ethics

Legal clients in the United States are increasingly multilingual and multicultural. More than 71 million people living in the United States communicate in a language other than English. Consequently, the lawyer’s duty of shared understanding is taking on new meaning. With the advent of ABA Ethics Opinion 500, cross-cultural communication skills are a lawyer’s ethical duty and a law school’s mandate. Additionally, ABA Standard 303(c) and the potential of increased experiential learning credit requirements make clear that immediate curricular changes are needed. To prepare for the modern practice of law, tomorrow’s lawyers need to develop cross-cultural skills while in law …

Legal Representation And Public Criticism, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Bigger Isn’T Always Better: The Texas-Size Problem Of Overbreadth In Criminal Discovery, Allison Siegwald

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Artificial Intelligence: An Impetus To Amend The Aba Model Code Of Judicial Conduct, Davis G. Yee

St. Mary's Journal on Legal Malpractice & Ethics

Notwithstanding the increasing prevalence of artificial intelligence or AI in the legal field, Chief Justice Roberts recently predicted that “human judges will be around for a while.” The reason is that at this time, AI cannot perform judicial mental functions as well as human judges can in deciding cases. Yet, instead of having AI replace human judges, some have explored whether AI can be used to assist human judges with their adjudicative and administrative responsibilities.

This Article focuses on a judge’s ethical obligations when encountering AI on both sides of the bench. That is, what do judicial ethics call for …

Sighting The Scope Of A Lawyer’S Representation, Douglas R. Richmond

St. Mary's Journal on Legal Malpractice & Ethics

Clients engage lawyers for many reasons. Regardless of the circumstances, however, the lawyer and the client need to agree on the scope of the lawyer’s representation, meaning the legal services the lawyer will perform for the client. The client must agree to and understand the scope of the lawyer’s representation as aspects of establishing her objectives for the matter and thereafter evaluating whether the lawyer is achieving those objectives. The client must also understand the scope of the representation to be able to decide whether the matter’s potential expense justifies its pursuit and to gauge the reasonableness of the lawyer’s …

When Can A Lawyer Lawfully Use Threats When Negotiating?, James M. Fischer

St. Mary's Journal on Legal Malpractice & Ethics

This Article focuses upon a basic negotiation device—a threat, used in a particular context—threats contained in settlement demand letters. In some, but not all, cases, however, the threat may be deemed a crime (extortion), in which case, the lawyer may be subject to sanction (criminal or civil liability, professional discipline) for making the threat. This consequence has, however, been largely ignored in academic literature. That is unfortunate, for it appears that many lawyers are unaware of the risks negotiation threats present because the risk is not well defined in the professional codes lawyers would normally look to for guidance.

This …

Mindful Lawyering: Incorporating Mindfulness Into The American Bar Association’S Model Rules Of Professional Conduct, Lyda Creus Molanphy

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Don’T Byte Off More Than You Can Chew: Ethical Considerations For The Estate Planner In The World Of Generative Artificial Intelligence, Gerry W. Beyer

St. Mary's Journal on Legal Malpractice & Ethics

Artificial intelligence (AI) is rapidly being incorporated into estate planning practices. AI products can increase the speed by which you prepare, review, and summarize estate planning related documents, tax returns, and client communications. Likewise, the speed by which you can conduct legal and financial research is faster than ever. This presentation is designed to explain how AI operates, the potential use of AI in your practice, warnings about the use of AI, techniques you may adapt to enhance your AI competency, and how to address the ethical issues that arise when using AI.

Our Ai, Ourselves: Illuminating The Human Fears Animating Early Regulatory Responses To The Use Of Generative Ai In The Practice Of Law, Margaret Raymond

St. Mary's Journal on Legal Malpractice & Ethics

Generative artificial intelligence is changing the way lawyers work, and with those changes have come questions and concerns about how it should be regulated. Those questions and concerns, particularly on the individual level, are driven by fears about the implications of the use of generative AI. This Article identifies and explores the fears that drive these regulatory responses: fear of exposing judicial fallibility, anxiety over AI replacing human lawyers, and concerns about missing out on AI’s potential benefits. Ultimately, effective regulation of the use of generative AI in legal practice needs to be attentive to the fears and hopes surrounding …

Trading Places: An Education For Legal Employers: A View From The Perspective Of A New Generation Of Legal Talent, Michele N. Struffolino

St. Mary's Journal on Legal Malpractice & Ethics

Most lawyers remember the stress associated with walking into their first job interview. The goal being to get the interviewer to “pick me.” Today, legal employers need to be prepared to be more of the interviewee than the interviewer in the hiring process. Over the past few decades, much focus has been on identifying the skills essential to success in the legal profession—mainly those skills and traits legal employers view as important when hiring new associates. These findings led to changes in legal education in order to prepare law students for entering the employment market and successfully securing a position. …

Measuring The Rapidly Increasing Use Of Artificial Intelligence In Legal Scholarship, Michael Conklin, Christopher Houston

St. Mary's Journal on Legal Malpractice & Ethics

The rapid advancement of artificial intelligence (AI) has had a profound impact on nearly every industry, including legal academia. As AI-driven tools like ChatGPT become more prevalent, they raise critical questions about authorship, academic integrity, and the evolving nature of legal writing. While AI offers promising benefits—such as improved efficiency in research, drafting, and analysis—it also presents ethical dilemmas related to originality, bias, and the potential homogenization of legal discourse.

One of the challenges in assessing AI’s influence on legal scholarship is the difficulty of identifying AI-generated content. Traditional plagiarism-detection methods are often inadequate, as AI does not merely copy …

Artificial Intelligence In Texas: Navigating The Risks, Benefits, And Uncharged Boundaries Of An Emerging Technology, Jordanna Tobias

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Addressing Witness Coaching By Cross-Examination, Gregory C. Sisk

St. Mary's Journal on Legal Malpractice & Ethics

In preparing a witness, may a lawyer script the testimony by taking the witness through repeated rehearsals to fabricate a narrative in the form directed by the lawyer and to use words that the lawyer suggests are more favorable for the represented party? Suppose the lawyer believes a suggestion to the witness regarding the specific substance or word choice of testimony does not introduce a falsehood but rather produces a more favorable spin on the witness narrative. May the lawyer justify that shaping of testimonial content as legitimate zealous representation of a client?

Given that any such suggestion by the …

The Impact The Monetary Value Of A Case Has On Effort And Productivity Within The Field Of Personal Injury, Maximiliano Elizondo

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Self-Discipline, Faith, And Civility: Promoting A Civil Society And Lawyer Professionalism, Honorable Douglas S. Lang

St. Mary's Journal on Legal Malpractice & Ethics

All lawyers are bound to assiduously adhere to the Law, including the strictures of legal ethics, professionalism, and all secular law. Moreover, lawyers of faith must adhere to the tenants of their faith as a way of life. The principles of those two sets of imperatives are not only compatible, they are inextricably intertwined. Together, they compel lawyers to treat others civilly and with respect and dignity. This paper demonstrates that lawyers, particularly Catholic lawyers, must unselfishly and civilly live their lives in a way to combat the scourge of incivility in the legal profession and in society. All …

Restoring The Public’S Faith: Character Education And The Supreme Court, Benjamin Rigney

St. Mary's Journal on Legal Malpractice & Ethics

The current news cycle is full of reports on the alleged ethical scandals rocking the Supreme Court. A significant result of these ethical failures is rapidly declining public trust in the Supreme Court as an institution, which in turn negatively impacts the public’s trust in the entire legal system. The role of judicial ethics is fundamental to the American legal system as illustrated in Charles Geyh’s article, The Architecture of Judicial Ethics, published in the University of Pennsylvania Law Review, and Amanda Frost’s article, Judicial Ethics and Supreme Court Exceptionalism, published in the Georgetown Journal of Legal …

“Zealous” Professional Ethics: The Transcendence Of Natural Law, Legal Positivism, And The Ethical Stage In The U.S. Legal Ethics System And The Moral Dilemma That Surround Zealous Representation, Sudarsanan Sivakumar, Marshall Maina

St. Mary's Journal on Legal Malpractice & Ethics

The zealous pursuit of law has its own ideals and dogma that sets it apart from the other rules in the Model Rules of Professional Conduct. Decades after many enactments and amendments, there still exists many debates considering its operation as to whether an attorney owes a duty toward society over the representation of the client. This is a Delphi method that has made even the best seasoned ‘Justiciar’ and ‘Legislator’ unable to find the proper guidelines to implement upon the Legal Superstructure. The Model Rules of Professional Conduct attempt to clear the fog around the existing principle of Zealous …

Artificial Intelligence And Legal Malpractice Liability, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

The Ethical Lawyer: Beyond The Rules, Nick Badgerow

St. Mary's Journal on Legal Malpractice & Ethics

Does being a lawyer mean more than the mere pursuit of a client’s cause and resulting (hoped for) financial success and professional standing, while avoiding discipline? This article invites a consideration of what it means to be a true “professional” in the practice of law. First, the article explores the definition of the term “professional,” and proceeds to examine the obligations undertaken by lawyers (a) in their oath of admission, and (b) in codes of professional conduct. However, the author posits, should not the true professional aspire to more than the mere compliance with these minimum standards? In answer, the …

Rumpole And The Dissatisfied Client: Lessons On Justice From Four Case Studies In Client Objectives V. Lawyer Means, Thomas N. Bulleit, Esq.

St. Mary's Journal on Legal Malpractice & Ethics

Fictional barrister-at-law Horace Rumpole is a skillful, tenacious, and even fearsome courtroom advocate for his criminal defense clients. He cares deeply about winning. But Rumpole departs from the stereotypical heroes and antiheroes of fictional courtroom drama in that he typically complies fully with the ethical constraints on advocacy and the truth-finding process. When Rumpole does occasionally stumble, it is in the other direction: by losing track of his client, and presenting often unwanted truths to elevate victory above other needs or interests that the client considers just as, or sometimes much more, important than a favorable verdict.

Using several of …

Cyber Security: A Lawyer’S Ethical Duty, Meagan Folmar

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Conduct Relating To The Practice Of Law: Aba Model Rule 8.4(G) And Its History In Light Of The Constitution, Nathan Moelker

St. Mary's Journal on Legal Malpractice & Ethics

The ABA adopted a revision to the Model Rules in 2016, prohibiting harassment and discrimination against a list of protected classes. The Rule, while well-intentioned and targeted at a serious problem, was broadly phrased to include a large category of protected speech and behavior. The Rule has already faced extensive and well-crafted challenges from the perspective of the Free Speech Clause. This article argues that two additional provisions of the First Amendment—the Free Exercise Clause and Freedom of Association—further illustrate the failure of the Rule and the alarmingly wide-ranging effects of such a prohibition on attorney conduct.

To Write Or Not To Write: The Ethics Of Judicial Writings And Publishing, Nick Badgerow, Michael Hoeflich, Sarah Schmitz

St. Mary's Journal on Legal Malpractice & Ethics

Judges are bound by the Model Code of Judicial Conduct promulgated by the American Bar Association and adopted most states, including the federal judiciary. Within these rules governing judicial conduct, Judges owe duties to the public and to their calling, to be (and appear to be) objective, fair, judicious, and independent. When judges venture into the realm of extrajudicial writing—in the form of fiction novels, short stories, legal books, children’s books, and the like—they must consider the ethical bounds of that expression. The Model Code of Judicial Conduct imposes five main constraints upon extrajudicial writings: (a) a judge may not …

The Disclosure Of Third-Party Litigation Funding Agreements Is Necessary To Resolve Ethical Dilemmas Created By The Third-Party Lender Industry, Gareth Purnell

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Unauthorized Practice Or Untenable Prohibitions: Refining And Redefining Upl, Jan L. Jacobowitz, Peter R. Jarvis

St. Mary's Journal on Legal Malpractice & Ethics

An extraordinarily number of Americans either cannot afford or cannot find lawyers to assist them on civil legal matters. And an increasing number of Americans turn either to on-line apps or to nonlawyer professionals whose practices may overlap in whole or in part with what lawyers do. Although individuals receive much needed assistance, these alternative providers often confront allegations of committing the unauthorized practice of law. Unfortunately, the rules regarding the unauthorized practice of law (“UPL”) are both outdated and extraordinarily ambiguous. Moreover, UPL issues regarding alternative providers are distinct from questions concerning whether nonlawyers should be entitled to be …

Legal Ethics, Code Of Conduct For Barristers And The Overriding Objective In Criminal Trials, Zia Akhtar

St. Mary's Journal on Legal Malpractice & Ethics

The criminal lawyer has a duty to his client, to the court, and to the administration of justice. This must be accomplished within a framework of ethics comprised from codes of conduct regulating the legal profession. There are difficult ethical problems arising from conflicts between a lawyer’s responsibilities to clients, the legal system, and the disciplinary codes of the profession. In England, the barrister’s conduct is governed by the Bar Standard Board, and legal professionals must abide by the regulations that are imposed upon them when acting for their clients. The new Criminal Procedure Rules and …

Why The Dobbs Draft Release Makes It Tougher To Teach Legal Ethics, Lynne Marie Kohm

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

The Lawyer As Dream Enabler, Gerald Reamey

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.